Zimmerman, Dunn and what went horribly wrong: Author Lisa Bloom talks to Salon

From implicit racial bias to "stand your ground," Lisa Bloom says dangerous forces are distorting criminal justice

Topics: Lisa Bloom, NBC News, Trayvon Martin, michael dunn, Justice, Race, black children, George Zimmerman, Jordan Davis, Violence, Crime, Shooting, Gun Violence, interviewe, Editor's Picks, ,

Zimmerman, Dunn and what went horribly wrong: Author Lisa Bloom talks to SalonGeorge Zimmerman, Michael Dunn (Credit: Reuters/Joe Burbank)

With the recent second anniversary of Trayvon Martin’s death, legal analyst Lisa Bloom released a new book on the rash of shootings of black teens, “Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It.” In addition to thoroughly re-analyzing the case and the trial in Part 1 of the book, answering questions about the case you didn’t even know you had, she devotes three chapters in Part 2 to underlying factors responsible for the repetition: implicit racial bias, America’s armed-to-the-teeth gun culture, and “stand your ground”  laws.

“Implicit racial bias” refers to biases we aren’t even aware of having, but which researchers since the 1990s have become increasingly skilled at detecting and analyzing. Bloom’s analysis, however, focuses particularly on how these invisible forces — often directly at odds with our conscious intentions — interact with all-too-solid, virtually immovable institutional structures, such as education and the law. In hindsight, Bloom’s book helps us recognize how the effects of these interactions profoundly shaped, and ultimately deeply distorted, the course of events, from those leading up to Trayvon’s murder, to those that transpired in the trial and its aftermath.

Salon recently spoke with Bloom; a condensed version of our interview follows.

Let’s begin with why you wrote “Suspicion Nation.” Books about major crime trials are a major sub-genre unto themselves, but this didn’t strike me as your typical example of that sub-genre, so, what was your motivation for writing it?

I’ll take that as a compliment, thank you. I’m not really a crime genre writer/person either. I’m a legal analyst and I’ve covered every major crime story and legal story in America about the last 18 years. And it’s typically gone that I’ve covered the story — oftentimes it’s a very emotionally compelling case — and then it’s over and I move on to the next one, moved though I was by the case. In this one, I was not able to move on, and a few months after the trial was over I just was very disturbed by what I saw. But I wasn’t completely sure that the case was such an injustice. I had the sense that it was, but I couldn’t be sure.

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I knew so many people, especially my friends who are mothers of African-American boys, who felt that this was a really sickening injustice, and yet they were constantly being told, well, the system played out, he was acquitted, move on. And in general I would agree with that, but not if the case was an injustice. So I just really felt compelled to do this project.

I also felt that this is an iconic case and it’s different than a lot of the ones that I’ve covered. It’s like the Emmett Till case from the 1950s. I think that in 20, 30, 50 years, people are going to look back at this case and say, “What happened?” And I wanted to go on record with everything that I have, with all the ability I have to interview people, to draw on my 30 years, almost, as a trial attorney, and to look at it and to give a very critical analysis of what went wrong in this case, so there would be a record.

It may surprise some people, but as you explain, your first impression of the trial was that “the chips were falling almost entirely on the defense side of the case — that is, for Zimmerman.” But that changed rather dramatically. What made it change for you and why?

When I did all the background reading, watching the videos, and looking at the crime scene photos and watching about the first week of the evidence, I did think the case was falling very strongly on the defense side. That’s because Zimmerman cooperated with police immediately, he spoke to the police, he didn’t run away, he told his story, which was coherent. Yes, there were inconsistencies, but none of them struck me as all that significant. Usually when people tell a detailed story several times, there would be inconsistencies. The neighbors seem to like him, even the police officers seem to like him. So I thought, as sad as this case is, he’s probably going to prevail on self-defense.

So, what changed was when I reviewed the evidence myself on a weekend. My first thought was I know he had a concealed holster, let me understand how the gun was carried in the holster. And so I looked at pictures of his holster. I looked at that particular make of holster, and how people typically wear it. Then I look at how he wore it. So that required me to go back and look at his videotaped – they call it a reenactment, but I don’t really considered it a complete reenactment, because they didn’t have him get down on the ground, and that was a critical error police made — but from a standing position Zimmerman indicated very clearly on video where the holster was, which was on his back right hip behind him, and so I stopped the video several times and rewound it. He demonstrates three times.

I was so shocked when I saw that that I had to have other people look at it for me. You know, sometimes you just can’t believe your own eyes. And they saw it the same way I did. That really started changing my whole view of the case, because there is no way that George Zimmerman’s story works. With his gun in the holster behind him lying on his back, Trayvon straddling him, and especially when you add in that it was a very dark night, it was raining, and there’s grass. As I said in the book, unless Trayvon has X-ray vision there’s no way he saw the gun, and reached for the gun in that moment, in that position, that Zimmerman said.

So I thought, “If that’s true, then what else am I missing?” Now that I’m open to the idea that the prosecution may be missing its own best evidence, which is just shocking to me, what else might I be missing? And I looked at pictures of the crime scene, where Trayvon’s body was found, which was a substantial distance from the concrete. I went there in person to the crime scene in Sanford, Fla., I looked at it with my own two eyes. Zimmerman’s head could not have been banged on the concrete as he says at the time that he pulled the gun. I know there was no blood on the concrete as well, but that could’ve been washed away by the rain, so I give him the benefit of doubt on that. But it just doesn’t work that his head was on the concrete; Trayvon’s body was too far away. He says he doesn’t move Trayvon’s body, which I think is believable.

So the two biggest parts of the self-defense story are now out. And that leaves manslaughter, or murder. Because we know that Zimmerman shot him. And those are the only two options. So that was just really very, very startling to me. And probably more startling was that the prosecution was missing this.

You write that there were three main contentions Zimmerman made — 1) that Trayvon was banging his head on the concrete, 2) that Trayvon saw and reached for his gun and 3) that only then, at that moment, Zimmerman shot him. Since you’ve just covered the first two, what about the third?

Self-defense requires that threat be imminent. So, if Zimmerman had gotten into a fight with Trayvon and previously been afraid moments earlier but the threat was passed, he could not shoot in self-defense. If he was afraid that sometime in the future five minutes, 10 minutes, 15 minutes, Trayvon was going to harm him, he could not shoot in self-defense. The threat had to be imminent and that’s especially true because Zimmerman had cold-called the police and he knew that they were on their way. So if there were any scenario where the threat was not imminent, he could not shoot.

You begin your book in a surprising way, almost novelistically, with the seemingly minor player, Maddy, the Puerto Rican juror in an otherwise all-white jury. Why did you begin with her? And not just with her experience in the courtroom, but with her overall experience with the other jurors? How does her experience illuminate the larger issues around it?

Maddy, to me, is a fascinating character, and what I was so struck by was the question of whether there was racial profiling inside the jury room, just as I thought so much about this case was about racial profiling. I was so startled to find out that her story as part of the sequestered jury mirrored so much of what black and brown America experiences. When I talked to Maddy she herself was resistant to come to that conclusion. Maddy herself always wants to say it’s not about color, and yet when she relaxes and just tells her story, as she did to me for hours and hours over several days, it clearly was about color, and class. And Maddy felt very shunned, and bullied, and belittled in the jury room and behind the scenes the few weeks that they were sequestered. She felt that she was singled out, she was treated differently, and she was really a token. And the problem with tokenism, just having one African-Americans or one Latino in any kind of situation in the workplace, in the jury, anyplace else, is that feeling of isolation and loneliness not having another person who is like you to bond with, to have solidarity with.

So, for example, in the Michael Dunn trial that we just saw, there were two African-American women in that jury, and we heard from one of them, I haven’t interviewed them, but I have the sense that there’s just an enormous difference between two and one. So Maddy’s experience was that she was just overwhelmed, and she wasn’t able to stand for the verdict that she believed was right, which was conviction for murder.

She also didn’t have the law and facts to support that verdict. And to this day – I just spoke to her the other day – to this day, she feels traumatized and distraught about the verdict, she feels that she was made to participate in an injustice. She is still cries often about it. She says she feels that she carries the weight of Trayvon Martin on her shoulders. It’s destroyed her.

Trayvon’s friend, Rachel Jenteal, was the prosecution’s most important witness, but they badly fumbled the ball with her in multiple ways. She was a multilingual (not just bilingual) teen — which alone should be enough to let people know she was pretty intelligent, but that’s not how she was perceived by everyone. Even the prosecution seemed to apologize for her. What in the world happened with her? Why?

Even when you say her name now I just get the sinking feeling, because it was such a disaster, and it didn’t have to be. Prosecutors very typically have to put on the stand witnesses who are imperfect, witnesses who are young, who are not educated, who don’t communicate well, criminal, witnesses with criminal records, witnesses who’re not likable, and she’s not even in any of those latter categories. This is just a teenage girl who did not want to be there, and who had a speech impediment, which I only learned after the trial. And we note the jury held that against her. They thought she was a poor communicator, and therefore not credible. And that was a link that needed to be destroyed. Poor communicator, maybe. Not credible, absolutely not. And the prosecutor should’ve explained that to the jury at the very beginning.

They also, of course, needed to prepare her, and many prosecutors, especially in cases of this magnitude, would have taken witness like this into an empty courtroom before the trial put her up on the witness stand, get the microphones organized, get her used to speaking into a microphone, which she has probably never done before, much less multiple microphones, which are in front of her. Go stand in the back, ask her questions. If she’s mumbling, tell her, “Rachel, you’re mumbling. Could you speak more clearly.” You practice cross examination, get her rattled, get her upset. Then remind her she can’t get upset, she can’t get rattled. You go through the whole process.

It would’ve gone a long way, because, for example, she’s an “A” student now, her senior year of high school and she’s going on to college. She has a bright future, she’s a bright young woman, so she would’ve been very capable of testifying well and testifying clearly if she had been prepared. But the adults were not there to support her. We know now that the jury did not consider any of her testimony in their deliberations. How disturbing! Because she was the last one to talk to him. She was one who heard the beginning of the altercation. And that was completely discounted. That is the fault of the prosecution.

You also devote full chapters to how the prosecution mishandled the 911 call and the expert witnesses. Connecting these two chapters is a compelling piece of evidence that it was Trayvon who was screaming for help that night. Could you talk about that?

Dr. Bao was the state’s medical examiner who they also did not prepare and they also did not stand behind in closing arguments. He wanted to talk about his theory of pneumothorax, which is essentially that bullet fragments immediately went into Trayvon Martin’s lungs and prevented him from speaking or breathing. But that would’ve dovetailed rather nicely if the prosecutors had argued it with the 911 call, because one person was screaming, bullet shot rings out, and then the screaming immediately stops. And that scientific theory would explain why, if it was Trayvon Martin screaming, he would’ve had to stop. Immediately, because his lung was punctured, you couldn’t breathe, he couldn’t speak.

Rachel Jeantel also said that Trayvon sometimes had a baby voice, high-pitched voice, and the screaming voice is high-pitched. George Zimmerman does not have a high-pitched voice, and the jurors, though he didn’t testify, heard his voice on the audio and video. That could’ve been pointed out, but it was not. The prosecution also failed to put together that Zimmerman said after he shot Trayvon, he was still in fear. He didn’t think he shot him. Which was a little hard to understand, but OK. He turned Trayvon’s body over and spread his arms out, because he was concerned that Trayvon had a weapon and was still alive and could get that weapon. So if Zimmerman was the one screaming why would he have stopped screaming if he was still in fear? And why would he have stopped screaming at exactly the same instant that he pulled that trigger if he was still in fear afterwards? Indeed when the first resident came out after the shooting Zimmerman said to the guy, “Help me! Help me!”

You also present an alternate narrative for how the prosecutor’s closing argument should have been presented. What were the most important elements that it should have contained?

I would say they should have stood by their most important witnesses, and bolstered them, which is just lawyering 101. They should’ve laid out Rachel Jeantel’s story in a clear manner so the jury could follow it, and they should’ve given their own theory of the case. That was probably the biggest failing in closing arguments. The jury only had the defense version of the case, which was there was a fight, that Zimmerman was down on his back, Trayvon was straddling him, Trayvon saw the gun, reached for the gun. And the prosecution really only argued about the details of that. They should’ve given their own narrative, which I gave as an example.

I think it’s far more likely that Zimmerman, once he came upon Trayvon, he pulled his gun immediately, so that he could control Trayvon Martin. It’s not hard to put that together, given that Zimmerman was a 1 on a scale of 1 to 10 for physical fighting according to his flight instructor who testified, and that he was in fear of Trayvon. We know that from his police call. That he was afraid to even give out his phone number because Trayvon could hear it, or his address, rather, because Trayvon would hear it.

So since he has no physical fighting skills, he’s in fear; I think it’s highly likely that he pulled the gun immediately. Now that would be illegal and Zimmerman would know that. That would be brandishing. And so he can’t admit that, but that would also explain why Trayvon was screaming for help, because here was a scary guy, you described as creepy, the guy that Rachel Jeantel said might be a rapist, now pointing a gun at him. So that would explain the screaming. Trayvon got one good punch in, but Zimmerman pursued him because the most important thing to Zimmerman was that Trayvon not get away. Remember, he said to the police, these assholes, they always get away. And his prior experiences in the last few months of calling in reports on African-American males who he considered suspicious and they had always gotten away.

And so that frustration had built to the point where this time he was not going to get away. He was told not to follow, but he followed anyway. Why? Because he did not want him to get away. And I think after Trayvon Martin punched him in the face, Zimmerman became enraged and with Trayvon screaming he became more and more enraged and he shot him and as soon as he pulled the trigger he realized, “Oh my God!” and had to immediately come up with a self-defense story. Which he was able to do, because he was an “A” criminal justice student. As soon as the police arrived, that was the story that he gave.

You just reminded me of something that struck me reading the book, which I wanted to ask about, the way that Rachel Jeantel’s story about the conversation she was having with Trayvon was clearly not about him acting in a manner consistent with Zimmerman’s story.

Yes, the tone. When I spoke to Rachel Jeantel, what I got out of her was that the tone of her conversation with Trayvon Martin was very light and joking. He was teasing her about how she was obsessed with doing her hair. He said you’re going to die with those hot rollers in, and Rachel said she was laughing. The main thing she remembers about Trayvon was how funny he was, and he wanted to get back home and watch the basketball game. And so he was asking her to check if the game was still on.

I feel like the prosecution got stuck down in the weeds — What did he say? What did you say? But they didn’t pull back to look at the tone, which was very light, and that’s exactly the opposite of the story that Zimmerman told, which was essentially Trayvon Martin was a homicidal maniac lying in wait, and within minutes of the encounter was threatening to kill him.

You even have the beginning of the encounter from Rachel Jeantel.

Yes. She heard a thump on Trayvon’s chest, which if I were the prosecution I would argue that Zimmerman touching his chest, punching him, pushing him, no matter how you slice it, that’s an unauthorized touching, a battery which would entitle Trayvon to punch him in the face. Then she said she heard the sound of wet grass, which I think would be either Trayvon or his phone falling on the grass, and then Trayvon saying, “Get off! Get off!”

That is tremendously important, because those are defensive words. And it just did not come through clearly to the jury at all. The prosecution should have put it together for the jury in their closing argument, and they never did that.

I want to ask what you think explains how the prosecutors went so wrong, without falling into the same sort of biased, suspicious thought processes you criticize.

Many people ask me, do I think the prosecutors intentionally threw the case? And I don’t think that. I’m not a conspiracy theorist. I think the prosecutors wanted to win the case, but they didn’t believe that they had a winnable case. And remember, they didn’t want this case. This case is very different from every other case they had because 25 days went by and they didn’t charge Zimmerman with any crime. Why? Because they didn’t believe that there was a crime. They believed the self-defense story.

It’s easy to demonize the prosecutors, but although I’m very critical of them, I really don’t want to demonize them. And in the second part of the book where I talk about racial bias, and especially implicit racial bias, what I’m really trying to show is that it’s not just a problem for them, it’s a problem for almost all of us, myself included.

That’s why I talk in the book about taking the implicit bias test myself and testing for racial bias myself, which just absolutely horrified me, but it made me consider that this is not about pointing the finger at one person or two people or 10 people and saying you’re a racist with a capital “R.” It’s about understanding deep-seated racial biases that are in our culture; even people that are working in good faith can have them. To me, that’s just such an extremely important message.

I talk at the end of the book about judges who are starting to do some instruction about implicit bias — I  think you can go a lot further with it — but who talk inclusively to jurors, say, “Many of us have racial biases, including me, and I want you to be on the lookout and consider many people don’t even realize it, but we walk around with attitudes and assumptions and I want you to consider very deeply whether that’s the case here because racial bias has no place in this courtroom, and consider switching the race of the two men involved here and see whether you come out with a different conclusion.”

In the second part of the book, when you discuss implicit racial bias, what I found particularly good was the way you wrote about how it interacts with institutional practice; you write about education, you write about the criminal justice system, and you write about how education itself has been turned into a punitive system, and that Trayvon himself had been suspended three times and it’s only because of that that he was even there to be shot and killed by Zimmerman in the first place. So could you summarize some of what you argue there?

The NAACP and other civil rights organizations have complained for some time that African-Americans, and boys in particular, are suspended and expelled at rates much higher than everybody else. I think our skyrocketing rates of suspensions and expulsions in America mirrors our mass incarceration. Someone’s a problem? Just get rid of them. And when were talking about children this is really appalling abuse.

Trayvon Martin is an example; what he was doing wrong were things that many of us did when we were kids, being tardy for class, writing on a locker, having a baggie with marijuana residue. None of this was any kind of physical violence against anyone else. This is just kind of knuckleheaded teenage behavior that used to result in getting called into the principal, maybe, or parents get called in. Maybe you get detention. Maybe you get extra homework.

But the old-school thinking was we actually want to keep your kids in school, because school is good for kids. And now it’s just get them out. Suspend them, and even expel them.

I hardly have strong enough words for how damaging this is to kids. I mean, the statistics are very clear: The more someone is suspended, and certainly if they’re expelled, the more likely they are ultimately to drop out and just give up on school entirely. This is really the worst time in our history for anyone to drop out of high school. It’s virtually impossible to find a job to do the job to have anything more than a life of poverty.

So it is just stunning to me, and then when you add in the component of racial bias, we know from the studies, for example, when a black person shoves a white person, the majority of people see that as aggressive, but when it’s the other way around, a white person shoving a black person, the majority do not see it as aggressive; many people see it as playful. So, you know, we take them into the classroom, you have a kid who writes a lot on a locker, that’s clearly interpreted in a far more negative way when that’s a black kid versus a white kid, and we can see that from the statistics of how often black kids are kept out of school, pushed out, walked out of school. What we should be doing is the opposite, making school more interesting, challenging, engaging. I would always say the kids who misbehave should be given more school, not less school.

So I was very surprised when I looked at Trayvon’s suspensions because I looked a lot at what Zimmerman’s defenders were saying. One of the things they said was this is a problem kid because he’d been suspended three times in the last two months, and I thought to myself ,“Wow! You know that does sound bad, being suspended three times. He really must’ve been a delinquent kid.” Then you look at what he did and you think, “Really? How is it possible that he was suspended for a day, three days, 10 days? For this behavior?”

I looked at the school rules and it didn’t match up with their own rules. It was just very disturbing. So here is a microcosm of what the NAACP and the National Urban League and the civil rights groups that are bringing these lawsuits are talking about.

Moving on to the issues of guns and the “stand your ground” laws, which is connected to the issue of implicit bias in terms of what is reasonable fear, you hit this from a number of different angles, about how fearful we are as a nation, how fearful we are of things we have no reason to be, how we are not fearful of things that we should be. Why don’t you talk a bit about the fear of black criminality and how that is at odds with the evidence you cite of what’s really going on.

As I was writing the book I would talk with white liberal friends who were with me on every civil rights issue but would say privately, really, Lisa, are black males more likely to be criminal? And so is it fair for me to cross the street if a black male is coming towards me? The answer is no! It’s not fair! And so I wanted to drill down on that issue as much as possible.

I spent a great deal of time researching this to see whether that was true. If you are white, and you choose to fear crime, which is probably wasting your time, but if that’s what you choose to do, you should fear other white people, because you are far more likely — I think it is six times more likely — to be a victim of violent crime by a white person than by a black person.

Most people commit crimes against people in their own communities and most communities are segregated. If my house is robbed, for example, it’s pretty likely it’s going to be by a white guy. And as you say, I talk a lot about this issue of fear for, more broadly, why are we in such fear of crime to begin with? I mean, yes, crime is a scary thing, but crime is way, way down in the last couple of decades, especially in the South, where this incident happened. And if we look at the top 10 causes of death, for example, among Americans, homicide is not on that list. If you want to fear America’s No. 1 killer, fear cheeseburgers.

One more thing: One reason that we demonize people is to justify stealing everything they’ve got — their land, their labor, their lives — without feeling that there’s anything wrong with it.

I think that’s a really perceptive comment and you’re absolutely right that dehumanizing is the key to discriminating against populations and making that OK, right? That’s why I wanted to really dig deeply down into that stereotype, which was the issue in the trial in the Trayvon Martin case and it was at issue in the Michael Dunn case. And just to talk about that for a brief moment: Michael Dunn shoots into a car of unarmed black kids, he says that he saw the gun, there was no gun, the kids never owned a gun, according to their  families never touched a gun; witnesses rushed in and there was no gun that anybody saw except for Michael Dunn who saw the magical invisible gun.

First of all, he may have actually seen the gun, right? Because we know – emphasis on “seen” – he may have seen the gun because we know that many people will put a gun in the hands of an African-American guy who they see as scary or suspicious when there is someone there. We know that for a fact, you know, that from studies done with video games, subjects are put in front of the video, a black place pops up, white face pops up later on there certain that they saw a gun in the hands of the African-American person where there wasn’t one. So, I mean, Michael Dunn may have genuinely, sincerely thought he saw a gun … but I think probably not, because he didn’t tell that story until much later. He did tell that story at trial and what’s remarkable is that we know that two of the jurors believed the self-defense story, even though there was no gun ever found. I think that has to be in large part because of the race of the boys in the car, but it’s just very believable to some people, African-American males are so inherently threatening that if Michael Dunn says there was a gun there had to be one.

One last thing that was fascinating to me: You were talking about the relationship between 9/11 and “stand your ground.”

That goes back to our suspicions and fears. Why do “stand your ground” laws start taking the nation by storm in 2005 and thereafter? Right? People have asked me was there some precipitating event? And I really know there wasn’t. There wasn’t a whole group of people who said, “Wow! I was in a violent altercation on the street, I extricated myself and retreated, according to the law, and I don’t like that, and now I’m going to go to my legislature and make sure the next time that I’ll be empowered to take a gun and shoot.” No one was saying that.

It was the NRA, and ALEC, who were very much behind “stand your ground” laws, but they didn’t do it alone. They got the support of people in the legislature, because there was this great fear after 9/11 that terrorists are coming for us, and we have to be able to defend ourselves, and police can’t always be there. And even now when you see people talk about “stand your ground” you will often see people say, I need it because I’m in fear of crime. Also there is this kind of machismo, “Why should I run,” and it really strikes a lot of people as just wrong that they should have to retreat from a violent encounter. And even the name of the law: Stand. Your. Ground. That’s very much like, “Make my day!” “Bring it on!” “Say hello to my little friend,” like Scarface says as he pulls out his automatic weapon. It’s very deep-rooted in the American culture.

And there’s always the law in the home you didn’t have to retreat, I think, because partly where would you retreat to from your home? You run out the back door and down the street, where would you go? It’s probably considered more dangerous. And so you could stand your ground in your own home, and that was the Castle doctrine.

But Michael Dunn, for example, in that gas station, that was not his ground to stand, and he had to get in his car to get the gone gun out of the glove compartment. He could’ve just as easily driven away. And prior law would’ve required that. And in the Michael Dunn case the jurors who have spoken said we felt that he had other options. But that’s pre-”stand your ground” thinking.

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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